353 F.

3d 916

PREWITT ENTERPRISES, INC., on its own behalf and on

behalf of all others similarly situated, Plaintiff-Appellant,
v.
ORGANIZATION OF PETROLEUM EXPORTING
COUNTRIES, Defendant-Appellee.
No. 03-11580.

United States Court of Appeals, Eleventh Circuit.

December 18, 2003.

COPYRIGHT MATERIAL OMITTED Michael Straus, Straus & Boies,

LLP, Mark J. Schirmer, Birmingham, AL, Jeffrey A. Bartos, Guerrieri,
Edmond & Clayman, Washington, DC, David Boies, Boies, Schiller &
Flexner, LLP, Robert J. Dwyer, Armonk, NY, for Plaintiff-Appellant.
Thomas S. Martin, Perry S. Bechky, Kristine A. Huskey, Shaniek Mills
Maynard, Jonathan Richard DeFosse, Washington, DC, J. Mark White,
White, Dunn & Booker, M. Christian King, Lightfoot, Franklin & White,
LLC, Sam C. Pointer, Jr., Birmingham, AL, for Defendant-Appellee.
Gregory S. Coleman, Austin, TX, William F. Gardner, Cabaniss,
Johnston, Gardner, Dumas & O'Neal, N. Lee Cooper, Maynard, Cooper &
Gale, Birmingham, AL, Carolyn B. Lamm, White & Case, Louis George
Ferrand, Thomas C. Green, Sidley & Austin, William J. Kolasky, Jr.,
Washington, DC, Thomas J. O'Sullivan, New York City, for Amici
Curiae.
Appeal from the United States District Court for the Northern District of
Alabama.
Before ANDERSON, BARKETT and RONEY, Circuit Judges.
BARKETT, Circuit Judge:

Prewitt Enterprises, Inc. ("Prewitt") appeals from the dismissal of its complaint
against the Organization of the Petroleum Exporting Countries ("OPEC") for

insufficient service of process and from the denial of its motion for alternative
service of process. Prewitt's complaint against OPEC alleged a violation of the
Sherman Act, 15 U.S.C. 1,1 for illegal price-fixing agreements on production
and export of crude oil and claimed equitable relief pursuant to the Clayton
Act, 15 U.S.C. 26.2 Because OPEC initially did not respond to the complaint,
the district court entered a default final judgment against OPEC enjoining it
from entering into, implementing or enforcing any agreements to fix and
control the production and export of crude oil for one year. OPEC then
appeared and moved to vacate the default judgment and injunction on the
grounds that OPEC had never been properly served with process, and thus, the
court lacked jurisdiction over it. The district court concluded that, because
OPEC resides in Austria and the applicable Austrian law prohibits service
without OPEC's consent, Prewitt's complaint must be dismissed for lack of
jurisdiction. We agree and affirm the dismissal of Prewitt's complaint for lack
of jurisdiction because service of process on OPEC has not been effectuated.
We also affirm the district court's denial of alternative service of process
because, in this case, there are no means available for service upon OPEC
under the Federal Rules of Civil Procedure.
I. BACKGROUND
2

Prewitt is a corporation organized and existing under the laws of Alabama with
its principal place of business in Birmingham, Alabama. Prewitt purchases
substantial quantities of gasoline and other refined petroleum products for
resale at its Eastwood Texaco Service Center gasoline station.

OPEC is an intergovernmental organization originally established in 1960 via

resolutions promulgated at the Conference of the Representatives of the
Governments of Iran, Iraq, Kuwait, Saudi Arabia and Venezuela in Baghdad,
Iraq. The principal aim of OPEC is "the co-ordination and unification of the
petroleum policies of Member Countries and the determination of the best
means for safeguarding their interests, individually and collectively." OPEC
Stat. art. 2(A) (2000). Presently, OPEC's membership consists of: Algeria,
Indonesia, Iran, Iraq, Kuwait, Libya, Nigeria, Qatar, Saudi Arabia, the United
Arab Emirates and Venezuela. Since September 1, 1965, OPEC has been
headquartered in Vienna, Austria. Its relationship with the Austrian government
is governed by the Agreement Between the Republic of Austria and the
Organization of the Petroleum Exporting Countries Regarding the Headquarters
of the Organization of the Petroleum Exporting Countries, February 18, 1974,
BGBL 1974/382 ("Austrian/OPEC Headquarters Agreement" or "Headquarters
Agreement").

Prewitt filed a complaint with the district court against OPEC on behalf of itself
and as the representative of all persons or entities who have indirectly
purchased petroleum or petroleum products in the United States since March
1999. Prewitt claimed that OPEC has been coordinating an international
conspiracy through agreements among its Member States and non-OPEC
members to limit the production and export of oil in order to fix world oil prices
above competitive levels. Prewitt argued that these agreements constitute
violations of United States antitrust laws, specifically the Sherman and Clayton
Acts, and have resulted in a substantial and adverse impact on United States
trade and commerce. Prewitt claimed that as a result of OPEC's illegal conduct,
its own acquisition and inventory costs for gasoline have increased
significantly. Consequently, Prewitt requested that the court declare the OPECcoordinated agreements illegal under United States law, enjoin implementation
of the agreements, grant any other appropriate equitable relief, and award costs
of the suit against OPEC for injuries sustained by Prewitt.

Prewitt attempted service on OPEC by requesting that the trial court send a
copy of the complaint to OPEC by international registered mail, return receipt
requested. The court clerk did so, mailing Prewitt's summons and complaint to
OPEC at its headquarters in Vienna. The pleadings were signed for, stamped
"received" by OPEC's Administration and Human Resources Department, and
forwarded to the Director of OPEC's Research Division as well as other
departments including the Secretary General's office. Ultimately, the Secretary
General decided that the OPEC Secretariat would not take any action with
regard to the summons and complaint.

Without the participation of OPEC, the district court certified a class defined as
all persons or entities who purchased refined petroleum products in the United
States from March 1999 to the present and entered a default final judgment and
order of injunction against OPEC. The court found that there was a conspiracy
between OPEC, its Member States, and non-OPEC members, namely Norway,
Mexico, the Russian Federation and Oman, to fix and control crude oil prices;
that the agreements coordinated and implemented by OPEC were illegal under
United States antitrust laws; that OPEC's illegal conduct has resulted in
substantial and adverse impact on United States trade and commerce of
approximately $80-120 million per day; and that OPEC and those acting in
concert with OPEC should be enjoined from entering into, implementing, and
enforcing any further oil price-fixing agreements for a period of twelve months.
Copies of the court's orders were delivered to each of the United States
embassies for the Member States of OPEC.

In response, OPEC made a special appearance and filed a motion to set aside

In response, OPEC made a special appearance and filed a motion to set aside
the default judgment and stay its enforcement pursuant to Rule 60(b)(1), (4),
(5) and (6)3 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), which
the district court granted, vacating the default judgment and injunction.4 OPEC
then filed a motion to dismiss Prewitt's complaint on various grounds including
insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(5).5 The district
court dismissed the case without prejudice, finding that Prewitt had failed to
serve OPEC its summons and complaint properly under the Federal Rules.
Prewitt then filed a motion to pursue alternative means of effecting service or to
amend the judgment. The district court denied the motion finding that, in this
case, OPEC cannot be effectively served with process.

II. DISCUSSION
8

We review the district court's grant of a motion to dismiss for insufficient

service of process under Fed.R.Civ.P. 12(b)(5) by applying a de novo standard
to the law and a clear error standard to any findings of fact. S & Davis Int'l, Inc.
v. Republic of Yemen, 218 F.3d 1292, 1298 (11th Cir.2000). We generally
review the district court's interpretation of Fed.R.Civ.P. 4 on service of process
as a matter of law de novo. Vencor Hosp., Inc. v. Standard Life & Accident Ins.,
279 F.3d 1306, 1308 (11th Cir.2002). Likewise, the district court's
interpretation of foreign law in determining sufficiency of service of process is
subject to de novo review. United States v. McNab, 331 F.3d 1228, 1240 (11th
Cir.2003) (citing United States v. Gecas, 120 F.3d 1419, 1424 (11th Cir.1997)
(en banc)). However, we join our sister circuit in holding that the district court's
denial of a motion for alternative service of process under Fed.R.Civ.P. 4(f)(3)
is subject to an abuse of discretion standard because the plain language of the
rule stipulates that the district court "may" direct alternative means of service.
Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1014 (9th Cir.2002).

The threshold issue in this case is whether OPEC has been effectively served
under the Federal Rules of Civil Procedure. If it has not, we must then
determine whether extraterritorial service of process on OPEC may be
effectuated at all under the circumstances here. By definition, "service of
summons is the procedure by which a court having venue and jurisdiction of
the subject matter of the suit asserts jurisdiction over the person of the party
served." Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242,
90 L.Ed. 185 (1946). A court is required to have personal jurisdiction under the
Due Process Clauses of the Fifth and Fourteenth Amendments to the United
States Constitution "as a matter of individual liberty" so that "the maintenance
of the suit ... [does] not offend `traditional notions of fair play and substantial
justice.'" Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
702-03, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (quoting Int'l Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

10

There are two rules of federal civil procedure that apply to service of process
upon an international entity located outside of United States jurisdiction:
Fed.R.Civ.P. 4(f) (Service Upon Individuals in a Foreign Country) and
Fed.R.Civ.P. 4(h) (Service of Process Upon Corporations and Associations).
The latter governs service on unincorporated associations located outside of the
United States and provides that:

11

Unless otherwise provided by federal law, service upon a[n] ... unincorporated
association that is subject to suit under a common name, and from which a
waiver of service has not been obtained and filed, shall be effected: ...

12

(2) in a place not within any judicial district of the United States in any manner
prescribed for individuals by subdivision (f) except personal delivery....
(emphasis added).

13

Fed.R.Civ.P. 4(h)(2). Thus, an "unincorporated association" 6 headquartered

outside of the United States that is (1) subject to suit under a common name7
and (2) has not waived service8 may be served in any manner authorized under
Fed.R.Civ.P. 4(f) for individuals in a foreign country except for personal
delivery.

14

Turning to Fed.R.Civ.P. 4(f), the first relevant section provides that:

15

Unless otherwise provided by federal law, service upon an individual from

whom a waiver has not been obtained and filed, other than an infant or an
incompetent person, may be effected in a place not within any judicial district
of the United States:

16

(1) by any internationally agreed means reasonably calculated to give notice,

such as those means authorized by the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents....

17

Fed.R.Civ.P. 4(f)(1). In this case, no other means of service has been

"otherwise provided by federal law" nor is there an "internationally agreed
means reasonably calculated to give notice such as those means authorized by
the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents...." The federal laws pertaining to service of process on a foreign
entity are codified in 28 U.S.C. 1602 et seq., the Foreign Sovereign

Immunities Act ("FSIA"), and 22 U.S.C. 288 et seq., the International

Organizations Immunities Act ("IOIA"). The parties agree that neither of these
federal laws apply to OPEC in this case. 9 The parties likewise agree that there
is no international agreement that stipulates the appropriate means of service.10
18

Thus, we must look to the remainder of Fed.R.Civ.P. 4(f), which provides for
other methods by which an unincorporated association may be served in the
absence of relevant federal law or international agreements:

19

(2) if there is no internationally agreed means of service or the applicable

international agreement allows other means of service, provided that service is
reasonably calculated to give notice:

20

(A) in the manner prescribed by the law of the foreign country for service in
that country in an action in any of its courts of general jurisdiction; or

21

(B) as directed by the foreign authority in response to a letter rogatory or letter

of request; or

22

(C) unless prohibited by the law of the foreign country, by

23

(i) delivery to the individual personally of a copy of the summons and the
complaint; or

24

(ii) any form of mail requiring a signed receipt, to be addressed and dispatched
by the clerk of the court to the party to be served; or

25

(3) by other means not prohibited by international agreement as may be

directed by the court.

26

Fed.R.Civ.P. 4(f)(2) and (3).

27

Prewitt originally chose to attempt service of process on OPEC under

Fed.R.Civ.P. 4(f)(C)(ii). However, the method set forth under that provision
applies only if it is not prohibited by the law of the foreign country. Based on
the evidence presented,11 the district court correctly found that service on
OPEC was prohibited by the law of Austria. Article 5(2) of the Austrian/OPEC
Headquarters Agreement provides that: "the service of legal process ... shall not
take place within the [OPEC] headquarters seat except with the express consent
of, and under conditions approved by, the Secretary General."12 Since the

Headquarters Agreement was enacted into law by resolution of the Austrian

Parliament and published in the Austrian Official Gazette pursuant to the
Austrian Constitution, the district court found it to be an integral part of
Austrian law.13 Thus, because service was prohibited by Austrian law, Prewitt
could not have effectively served OPEC under Fed.R.Civ.P. 4(f)(C)(ii).
28

Prewitt nonetheless suggests that we should liberally construe the formal

requirements for service under the Federal Rules because OPEC received actual
notice but simply chose to "ignore the whole thing." Br. of Appellant at 23.
However, we find no support for such an argument.14 Due process under the
United States Constitution requires that "before a court may exercise personal
jurisdiction over a defendant, there must be more than notice to the defendant ...
[t]here also must be a basis for the defendant's amenability to service of
summons. Absent consent, this means there must be authorization for service of
summons on the defendant." Omni Capital Int'l v. Rudolf Wolff & Co., 484
U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (emphasis added).15 In
other words, an individual or entity "is not obliged to engage in litigation unless
[officially] notified of the action... under a court's authority, by formal process."
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347, 119
S.Ct. 1322, 143 L.Ed.2d 448 (1999). In this case, Fed.R.Civ.P.(f)(2)(C)(ii)
clearly states that service of process by registered mail is only authorized where
it is not prohibited by foreign law. Here, the Headquarters Agreement
constitutes Austrian law and, under Article 5(2), expressly prohibits all service
of process upon OPEC within the headquarters seat that has not been consented
to by its Secretary General. Thus, we agree with the district court that even
though OPEC had actual notice of the filing of the suit, service of process was
ineffective because it was clearly not in substantial compliance with the
requirements of Fed.R.Civ.P. 4(f)(2)(C)(ii).

29

Alternatively, Prewitt argues that even if service failed under Fed.R.Civ.P. 4(f)
(2)(C)(ii), service by registered mail upon OPEC nonetheless complied with
Fed.R.Civ.P. 4(f)(2)(A), which permits service if it is effectuated "in the
manner prescribed by the law of the foreign country for service in that country
in an action in any of its courts of general jurisdiction." The provisions of
Austrian law that Prewitt references from Austria's Civil Procedure Code and
regulations for service of process by mail relate to service by Austrian courts on
persons resident in Austria and abroad. None of these Austrian law provisions
directly pertain to service mailed from abroad upon international organizations
resident in Austria. Prewitt argues that we should look only to the approved
"method" of service within the foreign jurisdiction and not to the substance of
Austrian law. However, the substance of the law specifically relating to service
of process cannot be divorced from the "method" of service. Indeed, 12(1)

and 11(2) of the Austrian Service Act specifically address service from
authorities abroad upon residents in Austria and trump the more general
provisions cited by Prewitt from the Austrian Code of Civil Procedure and
regulations for service of process by Austrian courts on residents in Austria or
abroad. 16 Moreover, the Regulation Regarding the Service of Process by Mail
upon Persons Abroad in Civil Proceedings that Prewitt argues applies in this
case specifically states that it does not apply to service on entities specified
under 11(2) of the Austrian Service Act. Dist. Ct. Doc. 87, Exh. 4B. Section
12(1) (as amended 1990) of the Austrian Service Act requires that:
30

The service of documents generated by authorities abroad to recipients in

Austria shall be carried out in accordance with the existing international
conventions, in the absence of which it has to be done in accordance with this
law.... (emphasis added).

31

Section 11(2) (as amended 1998) of the Austrian Service Act directly addresses
service from abroad upon international organizations such as OPEC requiring
that:

32

the mediation of the Federal Ministry for Foreign Affairs shall be enlisted in
undertaking service of process on foreigners or international organizations that
enjoy privileges and immunities under international law, regardless of their
place of residence or headquarters.

33

There would be no way for Prewitt to serve OPEC under 11(2) of the
Austrian Service Act because we must assume that if it had gone to the
Austrian Federal Ministry of Foreign Affairs, the Ministry would have applied
the laws of its own country and obeyed the dictates of the Austrian/OPEC
Headquarters Agreement prohibiting service without OPEC's consent.

34

In response, Prewitt again argues that actual notice can cure defective service of
process pursuant to Section 7 of the Austrian Service Act, which provides:

35

Should defects in service of process occur, service shall be deemed effectuated

at the time when the document has actually reached the recipient designated by
the authority.

36

Section 7 (as amended January 1, 1991) of the Austrian Service Act. However,
this section has specifically been interpreted in Austria not to apply to defects in
service of process that are in breach of the requirements for service under an
international agreement such as the Austrian/OPEC Headquarters Agreement.17

Moreover, Section 7 may not cure a failure to obtain OPEC's express consent
because under the Austrian law of lex specialis, the more specific provision in
the Headquarters Agreement for service of process upon OPEC takes
precedence over the more general language of the Austrian Service Act. Expert
Decl. of Dr. Wolfgang Hahnkamper, Dist. Ct. Doc. 80, Exh. 5 at 416-17, 42021.18 Finally, Prewitt contends that even if its service by registered mail on
OPEC could not be effectuated pursuant to any of the provisions of
Fed.R.Civ.P. 4(f)(2), the district court still had the discretion to order service of
process pursuant to Fed.R.Civ.P. 4(f)(3), which provides that service may be
effected "by other means not prohibited by international agreement as may be
directed by the court." (emphasis added). We agree with Prewitt that a district
court's denial of relief under 4(f)(3) is reviewed under an abuse of discretion
standard. However, there is no abuse of discretion here; on the contrary, any
circumvention of 4(f)(2)(C)(ii) by the district court in directing service again by
registered mail would constitute such an abuse. On these facts, we cannot read
4(f)(3) as permitting that which has already been specifically prohibited under
4(f)(2).
37

Prewitt then argues that, even if service by registered mail is prohibited by 4(f)
(2), other means of giving actual notice, such as fax or e-mail, that are not
mentioned in the rule or prohibited by international agreement could be
employed to serve OPEC under Fed.R.Civ.P. 4(f)(3), even if the service is
contrary to the laws of Austria.19 However, the 1993 Advisory Committee
Notes to Fed.R.Civ.P. 4(f)(3) instruct that:

38

Paragraph (3) authorizes the court to approve other methods of service not
prohibited by international agreements.... Inasmuch as our Constitution requires
that reasonable notice be given, an earnest effort should be made to devise a
method of communication that is consistent with due process and minimizes
offense to foreign law.

39

(emphasis added). Rather than minimizing offense to Austrian law, the failure
to obtain OPEC's consent would constitute a substantial affront to Austrian law.
We can find no support permitting such a consequence in the face of Austria's
direct prohibition of service on OPEC without its consent.20 The case relied
upon as persuasive by Prewitt, Rio Properties, Inc. v. Rio Int'l Interlink, 284
F.3d 1007, 1014 (9th Cir.2002), is not at all applicable to the circumstances
here. In Rio, the court held that the district court did not abuse its discretion by
ordering service by email upon an international corporation based in Costa
Rica. However, the primary issue in that case was whether Fed.R.Civ.P. 4(f)
should be read to create a hierarchy of preferred methods of service of process,
requiring a party to attempt service by the methods enumerated in Fed.R.Civ.P.

4(f)(2) before petitioning the court for alternative relief under Fed.R.Civ.P. 4(f)
(3). More importantly, the facts supporting the district court's direction of
alternative service in Rio are completely different from the facts here. In Rio,
the court determined that the defendant, an international internet company
doing business in the United States, had a viable presence in the United States;
that physical personal service had been legally attempted by actually serving a
legitimate agent of the defendant in the United States; and that the defendant
had evaded the attempted service. The most important distinction, however, is
that in Rio, there was no discussion of Costa Rican law at all, much less of any
prohibitions relating to service of process and thus, no need to take into account
the advisory note to Fed.R.Civ.P. 4(f)(3) directing that alternative service of
process should minimize offense to foreign law.21
40

Austrian law clearly provides protection to OPEC as an international

organization from all methods of service of process without its consent and also
requires that any service of process from abroad be effected through Austrian
authorities. In this case, OPEC has made clear that it refuses to consent
expressly to service of process by Prewitt; thus, the district court did not abuse
its discretion in denying Prewitt's motion to authorize alternative means of
service.

III. CONCLUSION
41

Based on the foregoing, we AFFIRM the district court's motion to dismiss this
case for insufficient service of process and its denial of alternative service of
process on OPEC.

Notes:
1

15 U.S.C 1 states that:

Every contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign
nations, is declared to be illegal. Every person who shall make any contract or
engage in any combination or conspiracy hereby declared to be illegal shall be
deemed guilty of a felony, and, on conviction thereof, shall be punished by fine
not exceeding $10,000,000 if a corporation, or, if any other person, $350,000,
or by imprisonment not exceeding three years, or by both said punishments, in
the discretion of the court.

15 U.S.C. 26 provides that:

Any person, firm, corporation, or association shall be entitled to sue for and
have injunctive relief, in any court of the United States having jurisdiction over
the parties, against threatened loss or damage by a violation of the antitrust
laws ... when and under the same conditions and principles as injunctive relief
against threatened conduct that will cause loss or damage is granted by courts
of equity, under the rules governing such proceedings, and upon the execution
of proper bond against damages for an injunction improvidently granted and a
showing that the danger of irreparable loss or damage is immediate, a
preliminary injunction may issue.... In any action under this section in which
the plaintiff substantially prevails, the court shall award the cost of suit,
including a reasonable attorney's fee, to such plaintiff.
3

Fed.R.Civ.P. 60(b) provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or a
party's legal representative from a final judgment, order, or proceeding, for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ...
(4) the judgment is void; (5) ... it is no longer equitable that the judgment
should have prospective application; or (6) any other reason justifying relief
from the operation of the judgment.

Prewitt also appeals the district court's decision to vacate the default judgment
and injunction. We need not reach that issue in light of our disposition of this
case

Fed. R.Civ. P. 12(b)(5) provides that:

Every defense, in law or fact, to a claim for relief in any pleading, whether a
claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto ... except that the following defenses may at the
option of the pleader be made by motion: ... (5) insufficiency of service or
process....

The district court treated OPEC as an unincorporated association pursuant to

Fed.R.Civ.P. 17(b)(1). Under this Circuit's jurisprudence, an unincorporated
association is defined as "a body of persons acting together, without a charter,
but upon the methods and forms used by corporations, for the prosecution of
some common enterprise."Penrod Drilling Co. v. Johnson, 414 F.2d 1217,
1222 (5th Cir.1969) (holding that labor unions, agricultural societies, co-ops,
banking associations, charitable associations, news associations, and religious
societies may all be considered unincorporated associations). But see Dean v.
Barber, 951 F.2d 1210, 1215 n. 4 (11th Cir.1992) (holding that a government
unit, subdivision or agency may not be considered an unincorporated

association). Cf. Hennessey v. Nat'l Collegiate Athletic Ass'n, 564 F.2d 1136
(5th Cir.1977) (treating a college athletic association in an antitrust suit as an
unincorporated association even where some of its members were state
institutions rather than individuals).
In this case, OPEC is an administrative body joined together for the common
purpose of acting on behalf of the business and political interests of its
members with regard to their petroleum resources. While its members are
sovereign nation states rather than private individuals, OPEC is not a
governmental unit or subdivision and is not incorporated under the laws of any
one Member State. Thus, under the facts of this case, we agree that it is
amenable to the designation of "unincorporated association." As the court in
Penrod has found, the term unincorporated association is one that is "generic"
and of "vague meaning" with few "sharp legal boundaries." Penrod Drilling
Co., 414 F.2d at 1222-23.
7

In this case, it is clear that suit was brought against OPEC, the common name
for this international organization of sovereign oil-producing foreign states

No evidence has been presented by either party that any waiver of service was
"obtained and filed" from OPEC

It is clear that OPEC is not a foreign state or political subdivision of a foreign

state pursuant to 1608 of the FSIA. OPEC also fails to qualify under 288 of
the IOIA because the statute only applies to international organizations in
which the United States participates pursuant to a treaty or an act of
CongressCf. Int'l Assoc. of Machinists & Aerospace Workers v. OPEC, 477
F.Supp. 553 (C.D.Cal.1979), aff'd 649 F.2d 1354 (9th Cir.1981) (dismissing
OPEC as a party to the case because it held that OPEC could not be legally
served under the FSIA or IOIA). We note that under the current state of our
federal laws, the individual Member States of OPEC are afforded immunity
from suit brought for damage caused by their commercial activities when they
act through OPEC. However, acting individually, a country would be subject to
suit under the commercial activity exception of the FSIA 1605(a)(2) which
provides that a foreign state has no immunity from suit in cases "in which the
action is based upon a commercial activity carried on in the United States by
the foreign state; or upon an act performed in the United States in connection
with a commercial activity of the foreign state elsewhere; or upon an act outside
the territory of the United States in connection with a commercial activity of the
foreign state elsewhere and that act causes a direct effect in the United States."

10

The Hague Convention on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters Done at The Hague, the

Netherlands, November 15, 1965, 658 U.N.T.S. 163 ("Hague Service

Convention"), provides rules governing service of process between signatory
states. However, while the United States is party to the Hague Service
Convention, Austria is not. Austriais party to the Hague Convention on Civil
Procedure, entered into force March 1, 1954, 286 U.N.T.S. 265, 1 Am. J.
Comp. L. 282 (1952) (translation), but the United States is not.
11

Evidence on service of process in Austria under Austrian and international law

was considered by the district court pursuant to Fed.R.Civ.P. 44.1
(Determination of Foreign Law), which provides that:
A party who intends to raise an issue concerning the law of a foreign country
shall give notice by pleadings or other reasonable written notice. The court, in
determining foreign law, may consider any relevant material or source,
including testimony, whether or not submitted by a party or admissible under
the Federal Rules of Evidence. The court's determination shall be treated as a
ruling on a question of law.
The evidence before the district court included: sections of Austrian law from
the Austrian Constitution, the Austrian Service Act, and the Austrian Code of
Civil Procedure; articles of international treaties such as the Vienna Convention
on the Law of Treaties, entered into force January 27, 1980, 1155 U.N.T.S.
331, and the Austrian/OPEC Headquarters Agreement; expert affidavits and
testimony from Austrian lawyers and professors on Austrian law;
correspondence between Austrian law experts; "Notes Verbales" between the
Austrian Ministry of Foreign Affairs and OPEC; correspondence from the
Austrian Embassy to the District Court for the Northern District of Alabama on
service of process in Austria; the United States State Department circular on
service of process abroad; the Austrian Foreign Ministry website on Austrian
law; and academic treatises on transnational litigation.

12

As noted in some of theamicus curiae briefs submitted to this Court, this

provision is commonly found in numerous other Headquarters Agreements
between sovereign states and international organizations around the world. See
e.g. Headquarters Agreement between the Organization of American States and
the Government of the United States of America, signed May 14, 1992, art. IX,
1, <http://www.oas.org/legal/english/docs/BilateralAgree/us/ sedeusa.htm>
("The service and execution of legal process ... may take place within the
Headquarters only with the consent of and under conditions approved by the
Secretary General."); Agreement Regarding the Headquarters of the Food and
Agriculture Organization of the United Nations, signed October 31, 1950, art.
III, 7(a), 1409 U.N.T.S. 23602 ("The service of legal process ... may take

place within the headquarters seat only with the consent of, and under
conditions approved by, the Director-General."); and the Agreement Relating
to the Headquarters of the International Bauxite Association between the
International Bauxite Association and Jamaica, signed November 5, 1975, art.
III, 4, 1021 U.N.T.S. 15000 ("The service of legal process ... may take place
within the Headquarters premises only with the express prior consent of and
under conditions approved by the Secretary General.")
13

We reject Prewitt's argument that because the Headquarters Agreement is not a

criminal statute with criminal sanctions but merely a "diplomatic
accommodation," it does not actually "prohibit" service upon OPEC within the
meaning of Fed.R.Civ.P. 4(f)(2)(C)(ii). The Headquarters Agreement has been
incorporated into Austrian law and need not provide for criminal sanctions to
enforce its prohibition of service upon OPEC without OPEC's consent. We also
reject Prewitt's argument that Article 5(2) of the Headquarters Agreement only
bars physical intrusions into the OPEC headquarters seat by the Republic of
Austria or by persons exercising public authority within Austria and thus does
not apply to service by international mail from someone outside of Austria.
Nothing in the plain language of Article 5(2) of the Headquarters Agreement
indicates that the drafters intended for such a narrow interpretation

14

It is true that receipt of actual notice is an important factor in considering

whether service of process is adequateHanna v. Plumer, 380 U.S. 460, 463 n. 1,
85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (dictum); Milliken v. Meyer, 311 U.S. 457,
463, 61 S.Ct. 339, 85 L.Ed. 278 (1940). However in all of the cases cited by
Prewitt, the courts were careful to determine that service of process was in
substantial compliance with the formal requirements of the Federal Rules;
actual notice alone was not enough to allow the court personal jurisdiction over
the defendant. See Sanderford v. Prudential Ins. Co. of America, 902 F.2d 897
(11th Cir.1990) (holding that service of process was in substantial compliance
with Fed.R.Civ.P. 4(b) even though it did not include a return date for the
responsive pleading); Direct Mail Specialists, Inc. v. Eclat Computerized Tech.
Inc., 840 F.2d 685 (9th Cir.1988) (finding that a corporation's receptionist had
sufficient authority to receive service of process as a "managing or general
agent" under Fed.R.Civ.P. 4(d)(3) and noting that the president of the company
received actual notice of the summons and complaint a day later); United Food
& Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371 (9th Cir.1984)
(holding that service was effective under Fed.R.Civ.P. 4(b) even though the
summons had a typographical error stating that the defendant had 10 rather than
20 days to answer the complaint); Banco Latino, S.A.C.A. v. Gomez Lopez, 53
F.Supp.2d 1273 (S.D.Fla.1999) (finding that personal delivery of service of
process on the defendant in Spain was sufficient because it was authorized
under Spanish law as required by the Hague Convention and Fed.R.Civ.P. 4(f)

(1) and the defendant had actual notice even though he only received a copy of
the summons and not the complaint because he departed hastily).
15

"Personal jurisdiction is a composite notion of two separate ideas: amenability

to jurisdiction, or predicate, and notice to the defendant through valid service of
process."DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983).

16

Expert Decl. of Dr. Wolfgang Hahnkamper, Dist. Ct. Doc. 56, Exh. 8 at 4

17

The Austrian Administrative Court ("Verwaltungsgerichtshof") has held that a

breach of a rule in an international agreement on service of process was not a
"simple defect of service" that could be cured by Section 7 of the Austrian
Service Act. The court stated the rule that:
[S]imple consideration of the generally acknowledged rules of public law,
which apply according to Art. 9(1) B-VG [Federal Constitutional Act] as
constituents of Federal law, and which include the principle that contracts are to
be performed in good faith... prohibits 7 of the Service Act from being
afforded the content that it should also reform breaches of explicit prohibitions
on service contained in international agreements....
Verwaltungsgerichtshof [VwGH] Beschlu, December 18, 1997, No.
97/11/0274 (Aus.).

18

Prewitt similarly argues that because OPEC failed to immediately reject the
pleadings sent to it by international registered mail, return them, or lodge
diplomatic protests with the United States, its actual receipt of the pleadings
constituted constructive consent or waiver of the protection under Article 5(2)
of the Headquarters Agreement that OPEC may only be served where it has
expressly consented to service of process. Br. of Appellant at 31 n.9. We reject
this argument because Article 5(2) must be read together with Article 9 of the
Headquarters Agreement, which provides that "OPEC ... shall enjoy immunity
fromevery form of legal process except in so far as in any particular case OPEC
shall have expressly waived its immunity... (emphasis added)."

19

In support of its argument, Prewitt cites toUmbenhauer v. Woog, 969 F.2d 25,
34 (3d Cir.1992), which held that "Rule 4(i)(1) neither explicitly or implicitly
requires any deference to foreign governments or the U.S. Department of State
in the manner by which service shall be made." However, Fed.R.Civ.P. Rule
4(i)(1) was the predecessor to the current Fed.R.Civ.P. 4(f)(2)(C)(ii) for service
of process by registered mail, not Fed.R.Civ.P. 4(f)(3), which is at issue here.
In any event, the Umbenhauer court pointed out that the 1993 amendments to
the Federal Rules on service specifically provided for greater deference

generally to foreign law. As the court noted, "the Standing Rules Committee of
the Judicial Conference of the United States recently drafted relevant proposed
revisions to Fed.R.Civ.P. 4" and that "[i]f proposed Rule 4(f)(2)(C) were in
effect today, then contrary to our holding here, the new Rule would preclude a
district court clerk from serving process by signed receipt mail on a defendant
in a country whose laws forbid that method of service." Id. at 33.
20

Prewitt also cites toIn re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000,
2003 WL 21659368 (S.D.N.Y. July 15, 2003) (unpublished), where again there
was no Austrian law explicitly prohibiting service of process on the defendant,
an Austrian corporation, without its consent. We do not find this case
applicable. But see Mayoral-Amy v. BHI Corp., 180 F.R.D. 456 (S.D.Fla.1998)
(declining to authorize service of process by facsimile under Fed.R.Civ.P. 4(f)
(3) where doing so would be in contravention of Belize law); Lord v. Living
Bridges, 1999 WL 528833 (E.D.Pa.1999) (unpublished) (ordering plaintiffs to
serve defendants under Fed.R.Civ.P. 4(f)(3) in a manner that was not prohibited
by international agreement or applicable Mexican law).

21

We do not say that a district courtnever has discretion to direct service of

process under Fed.R.Civ.P. 4(f)(3) that is in contravention of a foreign law.
Rather, we are satisfied that under the facts and circumstances of this case,
directing service of process would constitute a clear abuse of discretion.